Tort Reform

June 29, 2018

A court decision that overrules longstanding law that had protected the most vulnerable. A political court that accepts false information as fact. A corporate court willing to overlook the obvious cruelty of an unnecessarily sweeping ruling.

With all the news about the U.S. Supreme Court this week, especially the large number of recent 5-4 decisions that harm workers and bust unions, back admittedly racist policies and explicitly propel the election of Republicans, you might be thinking I’m talking about that court. Yet there are other supreme courts in the land doing similar damage around the country, and today we’re talking about one of those: the Wisconsin Supreme Court.

On Wednesday, the Wisconsin Supreme Court told Ascaris Mayo, a 53-year-old mother of four, that despite the amputation of all four of her limbs due to medical malpractice and despite her having won her negligence case and proving before a jury that she would suffer $25.3 million in damages, she would only get a fraction of that amount due to a state law that severely caps compensation to patients like her.

Yet this is a law that should never have been. Let’s explain why:

1. In 1986, the Wisconsin legislature capped damages but the law was allowed to sunset in 1991.

2. In 1995, the legislature capped damages again.

3. On July 14, 2005, the Wisconsin Supreme Court struck down the law, correctly finding no rational basis for it and a violation of equal protection. The case, Ferdon v. Wisconsin Patients Compensation Fund, involved compensation to a child who was severely deformed at birth because of a doctor’s negligence. The Wisconsin Supreme Court found the following:

4. Despite being unconstitutional, the very next year, “State lawmakers led by then-Rep. Curt Gielow (R-Mequon), a former hospital administrator … approved a $450,000 cap that was vetoed by then-Gov. Jim Doyle.”

5. The legislature then passed another unconstitutional cap, this one $750,000, and Doyle signed it.

Proponents of this law knew it was unconstitutional and would be challenged, so they took a page from an already well-established “tort reform” playbook: shift focus to elect pro-industry judges and defeat judges who have voted to strike down laws that limit or immunize wrongdoers from liability and make it more difficult or impossible for injured consumers to go to court (i.e., “tort reform”). Indeed, a judicial election strategy has been a major focus of this movement since the 1990s, with one leader admitting in 1998 that “since amending constitutions and enacting federal legislation were not viable options for them, their only option was to influence judicial elections.” In Wisconsin, this has led to a deep and destructive politicization of the Wisconsin Supreme Court.

After the cap was re-passed, Big Business interests got busy. For example, the Wisconsin Manufacturers & Commerce, the state’s chapter of the U.S. Chamber of Commerce, which had “criticized the court for some of its rulings in product liability and personal injury cases,” spent more than $2 million in high court races in 2007 and 2008. Since then, plenty of outside money has flowed into the state, including from Koch-affiliated groups, which run “overwhelmingly negative” attack ads on Justices they don’t like.

The 2011 re-election campaign of conservative Justice David Prosser, who was once “accused of choking a fellow jurist,” was “supported by more than $2 million from conservative groups and big-business groups.” Prosser once called then Chief Justice Shirley S. Abrahamson a “total bitch,” adding that he would “destroy” her in a “war.

Notably, Justice Abrahamson wrote the 2005 Ferdon decision, which the now-conservative, Big Business court went out of its way to explicitly overrule this week, a seeming personal insult to Abrahamson who still sits on the bench. She is not seekingreelection next year. Expect the battle over her seat to be as nasty, noisy, costly and deceitful as any other 2019 campaign for political office.

With money and politics already dominating the executive and legislative branches of government, America’s court system should be a place where individuals and small businesses can successfully confront powerful industries and institutions, and force changes in their fraudulent or dangerous behavior. But the power and authority of judges and jurors represent a tremendous threat to the money-based political structure in this country. By taking power away from civil jurors with “tort reform” laws and targeting judges whose decisions they do not like, large corporate special interests are trying to change the entire landscape of the civil justice system. The intensity of these efforts leaves no doubt that a weakened civil justice system is only their first objective. Control of the entire judicial process is the goal.

Yet that’s not what the public wants. They want politicians to keep their hands off the constitutional right to civil jury trial. They want wrongdoers to be held fully accountable in court. The believe that people severely injured through no fault of their own, like Ascaris Mayo, should have the chance to go to court and be fairly compensated. And they want their judges to be independent, and not have to look over their shoulder worrying about what corporate giants think of them.

The outcome of state judicial elections can have enormous consequences for the everyday lives of Americans. Just ask injured patients in Wisconsin. Let’s hope we all pay attention.

October 11, 2017

Someone better check the IT department at the U.S. Chamber of Commerce because someone just got hold of a “confidential memo” and leaked it to us!

CONFIDENTIAL MEMO

To: Board of Directors, U.S. Chamber of Commerce, Institute for Legal Reform

From: ILR Leadership, Staff

Date: October 11, 2017

Re: Every single time!

Well, the Center for Justice & Democracy is at it again. Another one of their reports is out, reviewing internal small business surveys. Yet again, it confirms that “lawsuits,” or the “cost” of lawsuits, is an issue of less importance to small businesses than almost anything else they could possibly imagine. And this time, CJ&D really decided to stick it to us by including our own small business index — which confirms the exact same thing. What is happening?! (I suppose we should at least thank CJ&D for compiling all these surveys in one place).

Look, we’ve tried everything. Using “real housewives” as bait for our “small business summit,” so at least we could ply as many as possible with disinformation. Using our own fakenews outlets to push out our phony surveys, hoping to convince them to care. Aligning with other lobby groups, only to find out their work completely undermines us. We are running out of options!

As we all know, it’s been a challenge to coax small businesses into believing we care about them, when multi-million dollar corporate donors dominate our income stream, and we keep doing things directly against their interests. When it comes to issues like “litigation” and “lawsuits,” we seem to be drifting even further apart — no matter how many pop culture icons we pay to impress them.

As you know, in 1998, we were created ILR to pursue the Chamber’s “tort reform” agenda: protecting bad corporations from accountability, weakening the civil jury system and blocking the courthouse door for sick and injured Americans. But let’s face it, we want to block access to court for small businesses, too. They sue big companies a lot. Why would they want their own rights stripped away?

Of course, they don’t. That’s why, when we do surveys supporting “tort reform,” we can't ask small businesses what they think about the idea. We have to go to $100 million companies, and ask their in-house corporate lawyers who, as one expert put it, are “likely the very attorneys who experienced the professional embarrassment of losing at trial, naturally wanting to blame the states’ courts for their loss.” That’s just not honest.

Not sure what to do, but thanks for letting us vent. It’s been a frustrating few months!

September 12, 2017

Sometimes teachable moments happen at the very worst times and only with terrible costs. When it comes to Ohio’s draconian limits on legal rights, we are clearly at one of those moments and can only hope Ohio’s lawmakers take notice.

Back in the mid-1980s, at the behest of the insurance industry and other corporate special interests, Ohio enacted a boatload of anti-consumer “tort reform” measures that severely limited victims’ rights in that state. In 1999, Ohio’s Supreme Court struck down most of them as unconstitutional. Without missing a beat, a coalition of out-of-state corporate interests came into the state, dumped money there to influence the judicial elections, and eventually ousted the pro-consumer Supreme Court judges who struck down these laws. Then, in 2004/2005, the legislature re-passed many of the unconstitutional laws - but the newly-bought corporate court has upheld them ever since.

One of those provisions was a “cap,” or limit, on compensation to victims who suffer non-economic injuries. Ohio’s cap means that child rapists are off the hook for the harm they cause their victims.

Now, the impact of another one of those cruel “tort reform” laws is becoming clear. You may recall the horrific Ohio State Fair “Fire Ball” catastrophe in July, which killed Tyler Jarrell, a high school student who had just enlisted in the Marines, and injured (some severely) seven others including four teenagers. Jarrell’s attorneys are conducting a thorough investigation of this shocking event, clearly caused by someone’s negligence or recklessness. But it turns out, those responsible may be off the hook thanks to that 2005 “tort reform” law.

Specifically, in 2004 Ohio re-passed a “statute of repose” for harm caused by defective equipment older than 10 years - a law earlier struck down as unconstitutional. The statute of repose completely cuts off liability for the manufacturer or seller of defective equipment after this arbitrarily-established number of years. That means injured victims or their families can recover nothing (not even for health costs or lost wages) if the harm is caused by anything other than manufacturer fraud.

Statutes of repose are atrocious laws. The arbitrary liability cut-off applies no matter how serious the injuries, how many injuries have been caused over the years by the same product, or how reckless the actions of the wrongdoer are. It covers products with expected lives much longer than cut-off dates, products like nuclear power plant components, medical devices, elevators, home appliances, playground equipment, farm equipment, freight trains, trucks - and of course, faulty amusement park equipment.

Many states have found statutes of repose to be unconstitutional, as Ohio once did. And Ohio’s 10-year cut-off is one of the most restrictive in the nation, written courtesy of the corporate-funded far-right group, the American Legislative Exchange Council (ALEC).

What was then called “tort-reform” legislation now will “make the fight for justice much more difficult to achieve” for the victims of the ride failure, said Columbus attorney Michael Rourke. He represents Tamika Dunlap, a 36-year-old woman whose legs were shattered when one of the ride’s gondolas broke loose and crashed to the ground on July 26.

Lawsuits that are certain to be filed in the case will be affected by legislation that took effect in 2005, Rourke said.

That legislation got much of its attention for placing caps on jury awards for businesses and individuals in lawsuits. But the law also set a 10-year limit on a manufacturer’s liability for a product’s defects.

The limit, known as a statute of repose, would appear to protect KMG, the Netherlands-based manufacturer of the Fire Ball. The ride that broke apart was built in 1998.

Under the law, “No cause of action based on a product-liability claim shall accrue against the manufacturer or supplier of a product later than 10 years from the date that the product is delivered to its first purchaser or lessee.”

“It’s a terrible law,” said Mark Kitrick, a Columbus attorney representing the estate of Tyler Jarrell, an 18-year-old man who was thrown to his death when the ride broke apart. “A lot of products out there are supposed to last longer than 10 years. But if they turn out to be defective after that, the manufacturer can’t be sued or held liable.”

As with every calamity like the Fire Ball disaster, victims will be left to struggle on their own for many years, long after most of us will remember their names. While this terrible tragedy is still in its earliest stages, we hope Ohio politicians will consider the unfairness of this law. Statutes of repose do nothing but stop the most deserving from getting properly compensated and lessen the accountability of negligent companies. Liability and compensation decisions should be left in the capable hands of judges and juries, and not made by politicians in state capitals, who pass arbitrary laws like this.

And it’s worth remembering that no one saves money with laws that impose arbitrary liability limits. For those with ongoing medical expenses, taxpayers will wind up footing the bill for their care if those responsible are off the hook. And Tyler’s family might recover nothing at all. That is simply wrong.

July 27, 2017

Sometimes we get so caught in the specifics of this bill or that bill, that we forget what’s behind all of them: an orchestrated 40-year corporate campaign to obtain control over the civil justice system. Taking power away from juries. Electing anti-consumer judges. Eliminating liability for corporate wrongdoing. Keeping injured victims out of court. It's all part of the same cruel, anti-democratic and anti-free market movement known as “tort reform.” And for those who want to learn more, there are some great new materials out there.

Professor Andrew F. Popper, Bronfman Professor of Law at American University Washington College of Law, has just published the second edition of his book, Materials on Tort Reform. As reported in TortsPro Blog, “In the quest to cut the Gordian knot of tort reform, the hope is to provide all points of view in an accessible and compelling manner.” This isn’t a book just for law students or faculty members. It’s a great read for anyone curious about it all.

Then, there's this new published and fully-sourced on-line piece by Billy Corriher, deputy director of Legal Progress at the Center for American Progress. The piece leads with an analysis of a U.S. House of Representatives bill passed on June 28 – H.R. 1215 – “that would erect steep hurdles for injured patients looking to hold health care providers accountable for medical malpractice.”

But then, the article talks about where this bill fits into the larger “tort reform” movement, including the link to Big Tobacco:

The Seventh Amendment to the Constitution states that “the right of trial by jury shall be preserved.” Commenting on the right to a trial by jury, John Adams said that Americans have “no other indemnification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Corporations that don’t like being sued bankroll tort reform efforts

The medical and insurance industries launched a movement in the 1980s to limit lawsuits, and the so-called tort reform movement gained momentum when Big Tobacco got involved after facing massive lawsuits for its poisonous, addictive products. A 1986 memo from the Tobacco Institute laid out a plan for creating groups that appeared to be grassroots-driven but were actually “coordinated” by Big Tobacco.

There's so much more interesting stuff, so do check out the whole article.

And finally, for a fascinating “where are we now” overview, Joe Palazzolo at the Wall Street Journal this week looked at what this movement seems to have wrought – statistically, at least. Here’s some of what he found:

Fewer than two in 1,000 people—the alleged victims of inattentive motorists, medical malpractice, faulty products and other civil wrongs—filed tort lawsuits in 2015, an analysis of the latest available data collected by the National Center for State Courts shows. That is down sharply from 1993, when about 10 in 1,000 Americans filed such suits.

A host of factors are fueling the decline, including state restrictions on litigation, the increasing cost of bringing suits, improved auto safety and a long campaign by businesses to turn public opinion against plaintiffs and their lawyers.…

Anthony Sebok, a torts professor at Benjamin N. Cardozo School of Law in New York, contends the public perception of tort filings has never matched reality. Even at peak growth in the mid-1980s, tort cases amounted to about 20% of civil filings in state courts, on average.

“We as a society seem to be OK with plaintiffs when they are debt collectors coming in and using the court system more than they used to, but we somehow instinctively think it’s a bad thing when victims of accidents come in and do the same thing,” he says.…

More than 30 states have capped damages in medical malpractice or other cases since the 1970s, according to the Center for Justice & Democracy, a group that opposes such laws.

In other words, “tort reform,” in one of its various cruel shapes and sizes.

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